Tuesday, May 17, 2011

New Version of Online Counterfeiting and Infringement Bill Proposed

On Thursday, May 12, Senators Leahy (D-VT), Hatch (R-UT), Grassley (R-IA), Schumer (D-NY), Feinstein (D-CA), Whitehouse (D-RI), Graham (R-SC), Kohl (D-WI), Coons (D-DE) and Blumenthal (D-CT) introduced a new version of the COICA bill, this time called the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" (or, the PROTECT IP Act of 2011). As of this writing, a copy of the bill bearing the number has not yet been posted, although I have been informed that it will be numbered S. 968. (Thomas currently only provides access to bills S. 1 through S. 943.)

According to Senator Leahy's press release, this bill provides:
  • A narrower definition of an Internet site "dedicated to infringing activities";
  • Authorization for the Attorney General to serve an issued court order on a search engine, in addition to payment processors, advertising networks and Internet service providers;
  • Authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is "dedicated to infringing activities," but with remedies limited to eliminating the financial viability of the site, not blocking access;
    • [Note: this is the so-called "private right of action" but appears to try to take into account the concerns expressed about avoiding restrictions on free speech rights]
  • Requirement of plaintiffs to attempt to bring an action against the owner or registrant of the domain name used to access an Internet site "dedicated to infringing activities" before bringing an action against the domain name itself;
    • [Note: this provision in the bill may actually contain a typographical error. As written, this section states that only after a private rights holder attempts to bring a civil action against the owner, then the Attorney General may bring an action against the domain name. I think this was supposed to authorize the private rights holder to take the "in rem" action, since the Attorney General's ability to bring an "in rem" action is codified in the preceding section.]
  • Protection for domain name registries, registrars, search engines, payment processors, and advertising networks from damages resulting from their voluntary action against an Internet site "dedicated to infringing activities," where that site also "endangers the public health," by offering controlled or non-controlled prescription medication. 
    • [Note: This is one so-called "Safe Harbor" that witnesses representing GoDaddy and Visa requested for those private companies involved in the Internet ecosystem who try to prevent some of the bad actors from achieving profits in the U.S. market. It may not go as far as those witnesses requested, however, in that it is limited to counterfeit pharmaceuticals and dangerous goods.]
Senator Leahy also describes the purposes of the bill and republishes his statement on the floor to introduce the bill. He summarizes the ultimate point in this legislation:

"This legislation will provide law enforcement and rights holders with an increased ability to protect American intellectual property.  This will benefit American consumers, American businesses, and American jobs.  We should not expect that enactment of the legislation will completely solve the problem of online infringement, but it will make it more difficult for foreign entities to profit off American hard work and ingenuity.   This bill targets the most egregious actors, and is an important first step to putting a stop to online piracy and sale of counterfeit goods."
Senator Grassley has posted a similar press release (although it does not include the same "summary of the bill" section that Senator Leahy's does).

It remains to be seen how the bill will be received, and whether stakeholders believe that this version adequately addresses some of the criticisms of the prior bill that were raised during a Senate Hearing in February, and two House Hearings in March and April. (More on those hearings can be found in prior posts about the COICA bill.)

As of this writing, the House has not introduced a companion bill, but given its recent hearings on the topic, such a companion bill is expected in the near future.

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